Tuesday, May 26, 2020

Renée Nichols has joined the Board of Directors of Adoption Options as of April 22, 2020.Adoption Options is a licensed, not-for-profit agency that facilitates domestic and international adoptions, and provides information, education and counselling to birthparents, adoptive families, adoptees, professionals and the public.Adoption Options Manitoba Inc. was incorporated in September 1989 as a not-for-profit organization.In March 1999 Adoption Options became Manitoba’s first licensed adoption agency upon proclamation of The Adoption Act.Since 1989 Adoption Options helped to create more than 500 families.

Renée is excited to add to her experience in the area of adoptions and assist Adoption Options as a board member.

Thursday, May 21, 2020

Planning ahead – Powers of Attorney, Wills and Health Care Directives and their use during the COVID-19 pandemic and in general

Please see our earlier articles to learn more about Powers of Attorney and Wills

Part 3 – Health Care Directive

What is the purpose of a Health Care Directive?

A health care directive is a document that states your healthcare and treatment directions to be used by your medical professionals. It also allows you to give another person the power to make medical decisions for you should you ever be unable to make them yourself.

How do I make a Health Care Directive during COVID-19?

A healthcare directive can be prepared by Bennet Waugh Corneon your behalf.If you are proceeding through our office, we would be able to provide you with information and advice to ensure a clear and concise Health Care Directive.

Prior to finalizing your care instructions, we recommend that you speak with your family doctor or health care professional to ensure that both you and your healthcare professional understand the meaning and effect of your direction.

Sunday, May 17, 2020

Planning ahead – Powers of Attorney, Wills and Health Care Directives and their use during the COVID-19 pandemic and in general

Please see our earlier article to learn more about Powers of Attorney.

Part 2 – Wills

What is a will?

A Will is a written document that controls how your estate (your assets and your debts) is dealt with after your death.

Why is it important to have a Will?

A Will provides your family members with clarity and certainty about your personal wishes and financial matters.

A Will sets out the name of the person or persons you want to be in charge of carrying out your wishes (your executor). This person will be in charge of such things as distributing what you own, closing accounts, paying your debts and filing your last tax return.If you pass away without a valid Will, someone may have to apply to the court to be approved as the person to be in charge of your estate. This may add an additional burden to your family. There may be delay and additional costs to proceeding this way.

A Will can set out gifts to different family members, friends, and charitable entities.It can leave gifts of money, or specific items, such as heirlooms.

What happens to my estate if I do not have a Will?

Should you die intestate (without a Will) your estate would be distributed pursuant to The Intestate Succession Act.Your estate would pass to your next-of-kin, pursuant to the Act.You would be unable to leave specific gifts to charitable entities, friends, or other family members. It is also unlikely that you would be able to direct treasured heirlooms to the individual of your choice.

Why is a Will important if I have children?

A Will provides you with the ability to create a trust for your children.The Will would make clear when you want items or money to be given to your children, and possibly for what reasons money is to be withdrawn for your children.The items or money would stay protected under the trust in the meantime.In a Will, you would also have the ability to make clear at what age you wish your minor children to receive the items or funds under the Will, with an option to have the funds disbursed over time rather than all at once upon reaching a certain age.

You may also “appoint” a substitute guardian for minor children in your will. While the final determination of guardianship of a child is up to the court, appointing a guardian in your Will provides insight into your wishes, which will be considered by the court in deciding what is best for your children.

What information do I need to prepare a Will?

A good starting point is to begin preparing a list of all your assets and debts which will belong to your estate at the time of your death.This includes any bank accounts, insurance policies and pensions. You should include jointly held assets in this list. You should also think about who you want to receive your estate, and if there are any special gifts (of money or of special items) that you would like to make. We recommend that you think about an appropriate person to act as your executor and have an alternate individual(s) in mind, as a backup executor.

To assist, our office has prepared a general information sheet which we will ask you to fill out. Please email one of the lawyers at the end of the article to provide you with our general information sheet. This is the first step in preparing your Will.

How can I prepare a Will in the current COVID-19 situation?

Contact Bennet Waugh Corne to find out what steps are being taken to have these important documents created, and signed following the health recommendations in place for the protection of your health, our staff, and the community.

Lawyers who can help you with a Power of Attorney and Will are: (click on name for details about lawyer)

Tuesday, May 05, 2020

COVID-19, also known to many as coronavirus, has had a swift and drastic impact on all of us.The unknowns cause anxiety as we do not feel in control, and we worry about our loved ones, and our own ability to manage should we become ill.Most Manitobans have made great efforts to follow the recommendations of health professionals and our government as it relates to social distancing, and other measures to protect our own health, and in the hopes of flattening the curve of progression.But many of us have not thought of ways we can help our families to manage our affairs should we become ill, or otherwise unable to make personal attendances to take care of our own affairs.

There are several steps that can be taken to plan for this possibility, whether related to COVID-19, or simply as a matter of general sensible planning.In this article, we will share information about Powers of Attorney.

What is a Power of Attorney?

A Power of Attorney is a legal document that gives someone else the power to take care of your financial or legal affairs while you are still alive, but unable to take care of your own affairs.

In what kinds of situations are Powers of Attorney useful?

Powers of Attorney can be used to have a trusted family member or friend stand in your shoes to take care of things, when you are unable to do so.

Sometimes, people give a power of attorney to someone for a particular reason, or because of an upcoming known event, for example to take care of their financial arrangements while they are out of the country, or in anticipation of an upcoming hospital stay.

Many times, we see the elderly giving powers of attorney to a family member to help them with specific tasks such as banking.

Powers of attorney are often used to plan for times when it would be difficult, or impossible to take care of these things ourselves, due to physical impairment, or in the event we became unable to understand these tasks and make decisions due to mental health issues, and incapacity. An enduring power of attorney survives mental infirmity of the person granting it, and has to be witnessed by a limited type of professional, such as a lawyer.

What powers are given in a Power of Attorney?

Usually a Power of Attorney gives the other person general powers, to do all things which may be required such as banking, signing documents, renewing leases and mortgages, paying accounts, and the like.

Who should I give this power to?

Usually people name a trusted family member, or close friend to act as their “attorney” under the power of attorney. The “attorney” in this document is not (usually) a lawyer; it is the person to whom you are giving the power to take care of your affairs. The person should reside in the same province and be willing to take on this responsibility.

I already have an existing Power of Attorney, am I covered?

It is a good idea to review your Power of Attorney to ensure it is valid, survives mental infirmity, and can be used immediately in the case of an emergency.You may want to review who you have appointed to ensure they are able to assist you given the current COVID-19 situation. The appointed “attorney” may be part of a vulnerable sector of the population and may not be able to assist in the event of an emergency, self-isolation or quarantine.

I didn’t sign a Power of Attorney.Can I still sign one during COVID-19?

Because it is an important document, and to make sure that you understand what you are signing, and that it will be sufficient for its intended purpose, a Power of Attorney should be signed in front of a lawyer.Contact Bennet Waugh Corne, to find out what steps are being taken to have these important documents created, and signed following the health recommendations in place for the protection of your health, our staff, and the community.

Lawyers who can help you with a Power of Attorney are: (click on name for details about lawyer)

Monday, April 20, 2020

In March 2020, due to the COVID-19 pandemic, in an unprecedented move, the Court of Queen’s Bench of Manitoba suspended all hearings. Recognizing the great impact that the pandemic would have on families, the Family Division can be accessed, but for emergencies only at this time, and by special permission.

On April 1, 2020, the court agreed to hear a case in which one parent was denying the other parent access (parenting time) with the children. The parents had to that point shared custody of their children, pursuant to a court order on a week on/ week off schedule. Alison Bennet represented the parent whom was being denied access.

Under the custody order, the mother had the authority to make medical decisions for the children, to be exercised after consultation with the father. After cases of COVID-19 were found in Manitoba, the mother refused to follow the schedule, and instead offered the father daily visits to be exercised outdoors provided he maintained 6 feet distance from the children. She also offered FaceTime calls. There was no evidence that the father had contracted the virus or had been exposed to the virus. The court accepted that the facts fit within the definition of an emergent matter as the mother had “abruptly, unilaterally” and “without apparent justification”, “virtually eliminated” access and contact with the father. For this reason, it allowed the hearing to proceed as an emergency.

The hearing proceeded 2 days later by teleconference. The mother was ordered to immediately return the children to the father, and the father was granted make-up time. The mother’s future ability to make decisions on medical issues was suspended. The police were ordered to enforce the order if required. All other issues were adjourned to be heard after court resumes its regular work.

In making its decision, the court noted that the court had already determined that it was in the best interests of these children to be in the shared custody of their parents. The court also noted that these are unprecedented times, nobody knows how long the current situation will last, and that children’s lives cannot be placed on hold. The children have the need for guidance and emotional support from both of their parents.

The decision makes it clear that the court expects parents to cooperate and to act reasonably in the best interests of the children. In situations where this does not occur, and access with a parent is cut off without reasonable explanation or justification, it will intervene. Acting reasonably includes an obligation to follow court orders. While there was already a court order specifying parenting time in this case, it is believed the result would have been the same if there was an agreement, or regular ongoing schedule in place. If this was a situation where a parent was exposing children to risk by not following health recommendations related to COVID-19, the decision may have been different, as these actions would not be reasonable to the protection of the children. Each decision will be decided on its own facts specific to the family, and the children. This said, the courts expect parents to work it out, and to act reasonably, and not to litigate.

The court referenced the Ribeiro v. Wright decision of the Ontario Superior court. An excerpt from that decision reads:

"None of us have ever experienced anything like this. We are all going to have to try a bit harder - for the sake of our children."

Other take-away points from recent decisions in Canada include:

-There is a general presumption that existing parenting plans and parenting schedules should continue. Parents must follow all recommendations from our government and health officials for the safety of the children, the members of the family, and the community. Modifications to exchange times and methods may be required. In blended families, all members of the households need to follow precautions.

-If a parent is subject to a restriction such as self-isolation due to illness, exposure to illness, or recent travel, that parent may have to forego their time with the children, for the short term.

-Reckless exposure of a child or the household to COVID-19 will not be tolerated.

-For the sake of the children, we must maintain important parental and family relationships, and we must do it safely.

Parents should use good judgement, recognizing the children’s need for continuity and consistency with their schedule, and that modifications to the schedule may be appropriate considering such factors as school and day care closures, the parents’ availability based upon changes to their own schedules, and specific needs of the children. In appropriate cases, these factors may justify a change to the schedule. Such decisions are not to be made unilaterally.

Notice to Readers:

The articles on our website are for general information purposes only, and are not intended to be complete or exhaustive descriptions of the law. The articles and comments should not be relied on as legal advice or opinion. The articles are current only as at the date they are posted on the website, and the law is subject to change without notice. If you require legal advice or opinion on your own unique fact situation, we would be pleased to offer you our assistance and we invite you to contact us.